Opinion
DOCKET NO. A-2267-14T1
03-15-2016
J.L., Plaintiff-Respondent, v. A.D., Defendant-Appellant.
Lyons & Associates, P.C., attorneys for appellant (Mark T. Gabriel, on the brief). J.L., respondent pro se, has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-527-15. Lyons & Associates, P.C., attorneys for appellant (Mark T. Gabriel, on the brief). J.L., respondent pro se, has not filed a brief. PER CURIAM
Defendant appeals from an order entered by the Family Part on December 5, 2014, which denied her motion for reconsideration of a final restraining order (FRO) entered on October 17, 2014, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
We briefly summarize the relevant facts. The parties had a dating relationship, which apparently ended some time in 2006. In August 2014, plaintiff filed a complaint against defendant seeking a FRO under the PDVA, alleging that she had committed acts of domestic violence, specifically harassment under N.J.S.A. 2C:33-4, by sending defendant numerous text messages and e-mails.
The Family Part judge conducted a hearing on October 1, 2014. Plaintiff was self-represented; defendant was represented by counsel. After the parties testified, the judge placed an oral decision on the record.
The judge noted that plaintiff testified that in the five years since the parties broke up, defendant had sent him thousands of e-mails and text messages, and she had gone to his home at numerous times without invitation. The judge stated that plaintiff had met with defendant in an attempt to get her to stop contacting him. Defendant did not deny sending plaintiff the messages.
The judge noted that in his complaint, plaintiff had detailed the substance of the text messages of August 5 and 6, 2014. According to plaintiff, defendant called him a "fucking idiot"; said he ignored and provoked her "every day"; stated that she could not "tolerate [his] arrogance and bullshit"; indicated that she was "outraged"; said she would "aggressively attack [him] any time"; and stated that defendant could not "escape."
The judge found that defendant had committed acts of harassment under N.J.S.A. 2C:33-4, by sending plaintiff thousands of e-mails and text messages, in which she indicated, among other things, that she was going to make plaintiff's life miserable and that he was going to suffer. The judge found that the messages were sent for the purpose of causing annoyance and alarm. The judge also found that defendant had engaged in other acts of harassment by coming to plaintiff's home "continuously" without invitation, with a purpose to annoy or alarm him.
The judge determined, however, that a FRO should not be issued. The judge noted that plaintiff had never indicated that he was in danger. The judge stated that, although defendant had at times threatened plaintiff, she never "actually made good on any of these threats." The judge determined that plaintiff did not need a FRO for his protection.
The judge told defendant that, although he was not going to issue a FRO, one could be issued in the future if she "continue[d] doing this." Defendant said she understood. The judge suggested that defendant "move on" with her life. The judge stated that defendant should stop contacting plaintiff and stop going to his house. She replied, "Yes." The judge also stated that defendant should not contact anyone associated with plaintiff. Again, she stated, "Yes."
On October 10, 2014, plaintiff filed another complaint against defendant under the PDVA seeking a FRO. He again alleged that defendant had harassed him. In the complaint, plaintiff asserted that defendant had sent him text messages on four days in October 2014, and he detailed the substance of those messages. Plaintiff also set forth the parties' prior history of domestic violence, which included eighty nine text messages that defendant sent to him on August 5, 2014, and three additional text messages that she sent on August 6, 2014. The court entered a temporary restraining order (TRO) dated October 10, 2014.
On October 17, 2014, the court conducted an evidentiary hearing on plaintiff's application for a FRO. The parties appeared without counsel. Plaintiff testified that defendant sent him text messages on October 1, 3 and 4, 2014. Plaintiff provided the court with printed copies of the messages. Defendant did not deny sending plaintiff the messages.
Defendant testified that she was "feeling very emotional" after the previous court hearing, and she wanted to "kind of just put this behind us." She acknowledged that plaintiff had told her that she was bothering him and he had accused her of harassing him. Defendant stated that plaintiff asked her why she had lied to the judge when she promised that she was not going to contact him again.
Defendant testified that she told plaintiff that she did not make such a promise. Defendant stated that plaintiff kept making "provocative statements." She testified that she did not threaten plaintiff, use coarse language, or send the messages at extremely inconvenient hours. She stated that she was sorry she contacted plaintiff when she did, but again denied that she had threatened him.
The judge placed an oral decision on the record. The judge found that plaintiff had testified credibly that he did not want to have any contact with defendant, but she continued to do so, "not one more time but several times after that."
The judge pointed out that there was a history of harassment between the parties going back to August 2014, when defendant sent plaintiff numerous text messages after plaintiff told defendant that he did not want to have any contact with her. The judge recalled that in the prior proceeding, when he denied plaintiff's application for a FRO, he told defendant that she should not communicate with plaintiff "in any form or fashion" because plaintiff had made clear he did not want to have any contact with her.
The judge pointed out that on that same day he refused to enter a FRO, defendant contacted plaintiff. The judge found that plaintiff had established that defendant had communicated with him on October 1, 3, 4 and 10, 2014, and that such communications constituted harassment under N.J.S.A. 2C:33-4.
The judge determined that the communications were sent in a manner likely to cause plaintiff annoyance and alarm. The judge noted that although defendant had not threatened plaintiff with physical violence, the messages were nevertheless annoying. The judge therefore found that defendant had committed acts of domestic violence, specifically harassment.
The judge also found that a FRO should be issued because such an order was necessary to protect plaintiff from future acts of harassment by defendant. The judge stated:
The defendant was clearly warned at the last court appearance that she should leave the plaintiff alone because he had no desire whatsoever to speak to her or talk to her or be . . . associated with her any more. And instead of her heeding the [c]ourt's advice and more importantly heeding the . . . desires of the plaintiff, she continued to act in such a way which will cause her to be back here today.
The [c]ourt finds without a restraining order the defendant will continue to go back to the same things that she's gone back [to]
and continue to send text messages and . . . try to contact the plaintiff either physically or via text message or email or any other type of modes of communication.
The judge entered a FRO against defendant. On November 6, 2014, defendant filed a motion for reconsideration, seeking an order vacating the FRO and dismissal of the TRO. Defendant submitted a certification in support of her motion, in which she asserted that, while she had sent text messages to plaintiff, these were not acts of harassment. She also asserted that a FRO was not required to "control [her] behavior or protect the [p]laintiff from unwanted contact between us."
The judge considered the motion on December 5, 2014, and placed his decision on the record that day. The judge found no basis for reconsideration of his prior order. The judge entered an order dated December 5, 2014, denying the motion. This appeal followed. On appeal, defendant argues:
I. The [t]rial [c]ourt abused its discretion and erred as a matter of law by finding that the predicate act of harassment occurred at any time between October 1, 2014 and October 10, 2014.
II. The [c]ourt abused its discretion and erred as a matter of law by finding that a Final Restraining Order was necessary in this matter to prevent future acts of harm.
III. The trial court erred as a matter of law when it based its decision substantially on its prior verbal directives to [defendant] not to contact plaintiff at the
first hearing, which therefore constituted, in effect, a conditional dismissal of the first domestic violence complaint in contravention of New Jersey law.
IV. The trial court erred as a matter of law when it [j]udicially [n]oticed facts from the prior domestic violence proceeding without providing [defendant] the opportunity to be heard pursuant to [N.J.R.E.] 201(e).
V. The trial court erred as a matter of law when it judicially noticed certain factual information from the previous hearing that took place on October 1, 2004.
VI. The trial court erred as a matter of law and ran afoul of [defendant's] right to due process when it considered the prior history of domestic violence delineated on plaintiff's complaint and testimony from the prior proceeding but did not require plaintiff to testify regarding such allegations or proffer evidence in support of same.
VII. The trial court erred as a matter of law and ran afoul of [defendant's] right to procedural and substantive due process when considering the documents proffered by plaintiff in its decision where the content of the documentation was not read into the record or marked and entered into evidence by the [c]ourt.
VIII. The trial court also erred as a matter of law when it failed to reconsider its decision to enter the final restraining order for the reasons set forth in [defendant's] notice of motion for reconsideration.
We are convinced from our review of the record that defendant's arguments are entirely without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.
Factual findings of the trial court should not be disturbed unless they "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
"Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
The PDVA provides that a FRO may be issued if the court determines that the defendant has committed an act of domestic violence. N.J.S.A. 2C:25-29(a)(6). The term "domestic violence" is defined in N.J.S.A. 2C:25-19(a)(13) to mean "the occurrence of one or more of" specified acts, including harassment under N.J.S.A. 2C:33-4.
A person commits the offense of harassment if, with the purpose to harass another, he or she
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm;
. . .
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4(a), (c).]
We are satisfied that there is sufficient credible evidence in the record to support the judge's finding that defendant committed acts of harassment, as defined in N.J.S.A. 2C:33-4(a) and (c). Here, the record shows that defendant sent plaintiff a series of text messages in a manner likely to cause annoyance or alarm. The record also shows that the text messages constituted a course of conduct that were sent to alarm or seriously annoy plaintiff. In reaching his decision, the judge properly considered the parties' history of domestic violence, which included the proceedings on plaintiff's first complaint under the PDVA.
We are also convinced that the record supports the judge's determination that a FRO was required to protect plaintiff from further acts of harassment. The judge noted that a finding that a party committed a predicate act of domestic violence does not automatically require the entry of a final restraining order. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) (citing Kamen v. Egan, 322 N.J. Super. 222, (App. Div. 1999)). The court must evaluate the factors in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and determine whether a FRO is necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.
Here, there is sufficient credible evidence in the record to support the judge's finding that a FRO was required. The judge noted that, on October 1, 2014, at the conclusion of the proceedings on plaintiff's first domestic violence complaint, he told defendant not to contact plaintiff. Even so, defendant sent a text message to plaintiff later that very day. Thereafter, plaintiff again told defendant he did not want her to contact him, but she sent additional text messages to him on three other days in October 2014. As the judge noted, although defendant had not threatened plaintiff with any acts of violence, a FRO could be issued to protect plaintiff from "further abuse." Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION